Analysis: Starlink still no closer to SA market access, despite proposed new telecom law

Okay, let’s write this passage one last time: under the existing Electronic Communications Act (ECA) and current Independent Communications Authority of South Africa (Icasa) regulations, any entity providing individual electronic communications network services or using spectrum must satisfy the minimum 30% Historically Disadvantaged Group equity ownership requirement and Broad-Based Black Economic Empowerment (BBBEE) contributor status.

The Electronic Communications Amendment Bill does not relax or bypass South Africa’s equity ownership laws. Ditto for Icasa’s published draft Radio Frequency Spectrum and Fee Regulations that introduce a foreign space segment registration regime (Regulation 28B) and blanket terminal licensing.

Underlining this point, Regulation 28B(2) explicitly states that registering a foreign satellite space segment does not grant any right to provide commercial telecommunications services in South Africa, nor does it replace local Electronic Communications Services or Electronic Communications Network Services licensing obligations.

So when Deputy Minister Mondli Gungubele clapped back at the interviewer’s Starlink questions on stage at Bloomberg’s business media innovators conference in Kleinmond on Monday, that was the position he was speaking from.

“The problem is that people don’t understand [when we] talk about multinational corporations. They want us to talk about Starlink. There’s a lot of multinational corporations in South Africa which are working well with our policies,” said Gungubele.

Change is gonna come

So what is supposed to change with the Electronic Communications Amendment Bill? As you know, South Africans face high data prices, which limit access to digital government services, education, and economic opportunities – especially for citizens in townships and rural communities.

The Competition Commission’s Data Services Market Inquiry found that high data costs stem from a lack of competition and the entrenched dominance of a few large operators.

The amendment Bill is designed to dismantle these barriers, lower data costs, open up the market to smaller players, and speed up internet infrastructure deployment across the country.

One big change – which also explains why Communications Minister Solly Malatsi needed to execute the hit on the Wireless Open Access Network (Woan ) – says that if a primary licensee leaves assigned spectrum unused for two years, Icasa can require them to share it with secondary users. Preference will be given to small, medium and micro enterprises and non-profit community networks, which will not have to pay spectrum licence fees for their first 12 months of use.

Then, to increase competition, any network operator covering more than 90% of the population (called “access providers” in the amendment) will be legally forced to provide national roaming and mobile virtual network operator access (allowing virtual operators to sell mobile plans under their own brand) upon request within 60 days on fair, cost-oriented wholesale terms.

Perhaps the biggest obstacle the Bill clears is at a local government level. Telecommunications providers currently have to deal with hundreds of municipalities, each with different rules, delays and high fees to get permission (read: wayleaves) to dig up roads for fibre or erect towers.

The Bill states that the minister of cooperative governance and traditional affairs, Velenkosini Hlabisa, will create a single, national standard draft by-law. This will standardise wayleave applications, cap fees at actual costs, and guarantee fair access to municipal property (like light poles, high sites and underground ducts).

Wait, but won’t Starlink get the Woan spectrum?

No. The spectrum released back to Icasa consists of terrestrial International Mobile Telecommunications (IMT) cellular bands in the 700MHz, 800MHz, 2,600MHz, and 3,500MHz ranges.

These low- and mid-band frequencies are designed for ground-based 4G/5G mobile networks and coverage expansion.

In its recent written representations to Icasa, SpaceX addressed higher-frequency satellite spectrum bands. Specifically, SpaceX detailed requirements for Gateway Earth Stations operating in the Q/V-band (30-50GHz), E-band (71-86GHz), and millimetre-wave frequencies above 90GHz for high-capacity feeder links.

For user terminals and Earth Stations in Motion (eSIMs), SpaceX focused on Ku-band and Ka-band frequencies (such as 12.7-13.25GHz and 17.3-20.2GHz downlink and 13.75–14.0 GHz uplink).

No relaxation

We checked, and the amendment Bill does not alter, lower or circumvent existing ownership requirements under the ECA or BBBEE legislation.

To be fair to Malatsi, he explicitly affirmed that “compliance with empowerment requirements” remains a non-negotiable statutory prerequisite for spectrum and service licensing.

“We want to speak about multinational corporation private investment, and we are saying in South Africa [there has been historic] exclusion of millions of South Africans both from infrastructure, access to education, access to so many things,” Gungubele articulated.

“It should not be ridiculous, therefore, to say, ‘When you invest here, can you get along with us, work with us in this journey of improving, minimising inequality, reducing all the [discriminatory] laws?’”

No, it shouldn’t be ridiculous. And it is about time that we have adult conversations about how we grant access to our digital economy. DM